Can New York Enter A Final Criminal Judgment Against Trump While The Federal Removal Action Is Still Pending?

28 U.S.C. § 1455: "judgment of conviction shall not be entered unless the prosecution is first remanded" to the federal court.

Today Judge Merchan issued a sentence against President-Elect Trump, and presumably created a final appealable judgment. But could he?

President Trump has tried to remove this case to federal court under the federal officer removal statute. I wrote about the statute here, and Tillman and I explained why the case could not be removed here. The District Court denied Trump's motion to remove the case to federal court. But unlike with the usual federal question removal statute, where there is no appeal, the federal officer removal statute permits an appeal. This case is currently on appeal to the Second Circuit (Docket No. 24-2299). Judge Merchan noted as much in his decision:

As for the alleged misrepresentations by DANY in connection with the Removal proceedings, this Court is not aware of such misrepresentations. Thus far, Defendant's efforts to remove the case to federal jurisdiction have been rejected. What remains is Defendant's appeal of Judge Hellerstein's denial of his motion for leave to move for removal a second time.

Given this posture, could Judge Merchan issue a final judgment?

28 U.S.C. § 1455(b)(3) provides:

(3)The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

It seems that a final judgment cannot be entered until the case is remanded back to state court.

As I understand things, the case has not yet been remanded back to the state court. Can a final judgment of conviction be issued before the case is remanded? I don't know. But this issue may warrant some further thought.

Comments

[шинка]

lolz...

Slow motion train wreck that we're all going to rubberneck for the next 4 years.

Joy!

[Riva]

Merchan wasn't too bothered that he was ignoring the S.Ct.'s immunity decision, or due process of law, or that there was no FECA violation, or that Bragg had no jurisdiction over FECA anyway, or that this entire proceeding was politically motivated lawfare election interference, in fact wasn't put out in the slightest about his statutory conflict of interest and his daughter's profiting off the trial, so no he doesn't care about the removal status.

[SRG2]

TL:DR Trump lost so Merchan is a LOOSER (sic)

[Riva]

Sorry, I don’t speak idiot troll. Are you contending that Merchan isn’t statutorily conflicted? That his daughter didn’t profit from this trial? I know idiot trolls have a low attention span, but what the hell, let’s go on, if only because it bothers you…where was I?.. oh yeah, that the fat slob Bragg has jurisdiction over FECA or that there was even a FECA violation? That the non-unanimous multiple choice jury instruction was just fine? That admitting evidence from Trump administration officials and official acts did not violate Supreme Court precedent. That this whole farce of a trial, with a gag order on Biden’s main opponent, was not politically motivated? And while you’re at it, explain Colangelo’s (a former top DOJ official) decision to make a career change by working for a fat slob DA.

[CTaylor9]

Merchan is a spic judge, and the case was prosecuted by a nigger district attorney, and he was put in place by a kike political activist Soros.

hahahahha

[Riva]

F’ing moron. You sound like another idiot democrat troll. Probably an alias for one of the many hacks that comment here regularly. Looks like this site is taking up the mantle of the old Twitter cesspool. And I think I’ll mute you out.

[шинка]

Freedom of speech is awesome! Helps us identify racists easier.

[SRG2]

Sorry, I don’t speak idiot troll.

Morgan Freeman: "But he did speak idiot troll. And fluently"

[David Nieporent]

Bot is malfunctioning again. It's just repeating the same stuff that it has already been told is wrong, over and over and over again.

[Stupid Government Tricks]

Then it should be easy to refute. Go ahead.

[David Nieporent]

No thanks; not taking the sealioning bait. It's all already been refuted, many times by many people who are actually lawyers. The problem, as Rivabot demonstrates, is that it is far quicker to lie than to refute lies. Lies just take typing something that one wants to say; refuting them requires gathering and compiling detailed arguments.

[David Nieporent]

I have no idea what happened there; I did not mean to link to anything.

[Riva]

Thank you for your a-hole comment but this chain already has an idiot troll. You can be the idiot troll on the next topic. But, of course, feel free to add some of your signature crazy, if you really can’t hold it in.

[Randal]

this chain already has an idiot troll

You are correct sir!

[Scooter]

Thanks for conceding.

[Dr. Ed 2]

If FECA is a Federal law, why can't Trump pardon his violation of it?

If there is no violation of Federal law, which a pardon means, then what does NY have to base a decision on? QED no more felony...

What am I missing here?

[RedheadedPharoh]

It's Trump Law, so Judge Merchan can do what he needs to Save Our Sacred Democracy, he's protected by the General Welfare Clause which grants the government unlimited powers so long as say it promotes the general welfare.

What to best way to promote the general welfare? Why saving our Sacred Democracy is!

[Malika the Maiz]

I love how MAGAns at the same time want special treatment for Trump and cry “Trump Law!” Almost as funny as the ostensible federal government haters want Trump to get special treatment because he’s the elected head of the federal government.

[Longtobefree]

Based on the farce of the last four years, New York can do any damn thing it wants to.

[Chacho]

Once again, Josh fails to understand basic appellate practice. The case WAS remanded back to state court by virtue of the district court’s remand order. Absent an order affirmatively staying remand pending appeal (which did not happen here), an appeal does not prevent a remand order from taking effect. Rather, the case is remanded, and if the court of appeals ultimately reverses, the case is re-removed to federal court.

[Randal]

Yeah, that's what I thought too. And I don't even call myself a law professor!

[ObviouslyNotSpam]

Josh: "Oh."

[Voize of Reazon]

Maybe I haven't been paying close enough attention, but I understood the history of this matter to be

• Trump filed notice of removal in 2023
• Judge Hellerstein remanded to state court in July
• Trump appealed to the 2nd Circuit but dismissed his appeal in November
• Trump moved for leave to file a second removal in Sept. 2024 which Hellerstein denied.
• Trump appealed the denial to the 2nd Circuit and asked Hellerstein for a stay of his remand order pending that appeal, which he denied. Trump also asked the 2nd Circuit for an emergency stay, which it denied.

So the case was remanded, and what is pending appeal is the denial of leave to file a second removal notice which does not affect sentencing under §1455(b)(3).

[David Nieporent]

Maybe I haven't been paying close enough attention

If you think Josh Blackman is constrained by law or facts, or anything other than a desperate attempt to hold himself out as clever, you have not been paying close enough attention.

[MikeNY]

Indeed, Prof. Blackman couldn't even write what he meant. " District Court denied Trump's motion to remand the case to state court". Trump , having removed, moved to remand? The author must have meant "remove from" not "remand to" but is so eager to post accuracy disappears.

[mike petrik]

Hugely insightful takedown, Dr. Pedant!

[ConservativeProfessor]

A question for the practicing lawyers out there: Could Trump pardon himself for the federal crimes that are elements in the state's case? As I understand it, the accounting crime became a felony because it was in the service of a federal campaign finance crime. But what if Trump pardons himself for the latter? Does that mean that the inital state conviction is moot because the federal government no longer recognizes that as a crime occurred?

[Area Man]

Just spitballing, but I don’t think so. If someone is convicted of felon in possession of a firearm, and then the underlying felony is pardoned, that doesn’t mean they weren’t a felon when they were convicted of felon in possession.

[Voize of Reazon]

No, his felony involved false business records made with the "intent to commit another crime or to aid or conceal the commission thereof". As long as he had an intent to conceal a crime the aggravating element is present. A pardon after the fact doesn't negate his intent, in fact intent is enough even if the anticipated other crime never actually happens.

[Dr. Ed 2]

But a pardon -- as opposed to commutation -- means that the crime legally never happened.

Of course the real issue here is NY defining something to be a violation of Federal law without the Feds saying it is.

What if it had instead been a violation of Connecticut law -- could NY say it was without CT first saying it was?

[Tim]

If you Google "does a pardon make it so that a crime never happened", you'll immediately find various sources saying that's not the case. Maybe they are mistaken — I haven't researched whether it is well established in either direction — but I think it's at least something that isn't something you can assume is uncontroversially true.

But also: The New York law he was convicted under doesn't even require that another crime was committed. Just that there was an intent to commit a crime. The last commenter just quoted that language.

I really don't get where you're coming from here. Even if a pardon did actually erase the crime from history in a full Doctor Who style rewriting of time, the New York law doesn't require a crime to have occurred.

[David Nieporent]

Could Trump pardon himself for the federal crimes that are elements in the state's case?

I don't think a president can pardon himself. But assuming one can, no, Trump can't pardon himself for the federal crimes that are elements in the state's case, because there aren't any federal crimes that are elements in the state's case. But assuming a president can pardon himself, Trump can pardon himself for any federal crimes. But the rest of your question is this:

Does that mean that the inital state conviction is moot because the federal government no longer recognizes that as a crime occurred?

It does not mean that, no. Pardoning doesn't retroactively erase the crime for which someone has been pardoned.

As I posted in one of these threads: assume John was convicted in 2010, of I dunno, felony bank robbery. (Doesn't matter what, as long as it's a felony.) But last year, in 2024, during a traffic stop, police found John with a gun. He is now guilty of a new crime, the federal crime of being a convicted felon in possession of a firearm. (18 USC § 922(g).)

Now John uses his connections to get himself pardoned for the bank robbery. Does that mean that in 2024 he wasn't a felon-in-possession? It does not mean that, no. Whatever his status now, in 2024 he was still a felon, and not allowed to possess the firearm, and that's when he committed the 922(g) offense.

[Dr. Ed 2]

The problem is that the gun offense is a separate offense -- this isn't. The Federal offense here is an essential part of the state offense being a felony, so it would lose felony status without the Federal offense.

The better example was when Arizona was trying to enforce Federal immigration law -- only the Feds can enforce Federal law.

[Randal]

You're hopeless. For the literally 487th time, the federal crime was not an element of, essential part of, or even necessary to the state crime, felony or otherwise.

The only thing that matters is Trump's mental state at the time, and a pardon doesn't change that.

[David Nieporent]

Everything you said there was both wrong and irrelevant.

[not guilty]

"A question for the practicing lawyers out there: Could Trump pardon himself for the federal crimes that are elements in the state's case? As I understand it, the accounting crime became a felony because it was in the service of a federal campaign finance crime. But what if Trump pardons himself for the latter? Does that mean that the inital [sic] state conviction is moot because the federal government no longer recognizes that as a crime occurred?"

The premise of the question is mistaken. There is no federal crime which is an element of the state's case. The charged offense is Falsifying Business Records in the First Degree. The essential elements are: (1) making or causing to be made; (2) a false entry; (3) in the business records; (4) of an enterprise; (5) with intent to defraud; (6) that includes an intent to commit another crime or to aid or conceal the commission thereof.

The object offense as to which the jury were instructed is Section 17-152 of the New York Election Law, which provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election.

The particular "unlawful means" is not an element of the offense. As I wrote on the Monday open thread, compare the crime of common law burglary. The essential elements are: (1) the breaking and entering (2) of the dwelling house (3) of another (4) in the nighttime (5) with the intent to commit a felony. If there is no such intent to commit a felony, the breaking and entering may constitute illegal trespass. It is the element of intent to commit a separate felony that elevates the unlawful entry from a misdemeanor to the felony offense of burglary. The separate felony need not have been actually committed in order to support a burglary conviction.

Let's hypothesize a trial wherein the government's evidence shows that the accused broke into another person's dwelling house at nighttime. There is evidence that the accused intended to rape, rob and kidnap the occupant of the house, but he was apprehended as soon as he entered, before any other offense came to fruition.

If four jurors found an intent to rape, four other jurors found an intent to rob, and the remaining four found an intent to kidnap the intended victim, a conviction of burglary would still stand even though jurors may not have agreed on what predicate felony was intended.

[Dr. Ed 2]

But rape, robbery, and murder are state offenses, each with related "attempted" offenses for the very situation you mention.

[David Nieporent]

Nobody is talking about attempt. We're talking about intent.

[cannpro]

Josh Blackman is a liar. The case was remanded to state court. Trump simply attempted to resurrect the removal after the 30 day window requirement elapsed, and after conviction, but before sentencing. By the plain text the case was remanded before conviction.

[ObviouslyNotSpam]

Being mistaken or ignorant doesn't make someone a "liar".

[not guilty]

Professor Blackman correctly observes that 28 U.S.C. § 1455(b)(3) provides:

(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

The flaw in his reasoning is that what is pending before the Court of Appeals is the District Court's denial of a motion for leave to file a belated notice of removal. To treat that as the filing of a notice of removal would be tantamount to treating an unsuccessful field goal attempt as a field goal. https://www.youtube.com/watch?v=EWiuejtLXt0

[David Nieporent]

Remember that Josh Blackman does read the comment threads — he's too narcissistic not to — and we know that because he has occasionally acknowledged, in a martyred sort of way how he's being criticized. And yet, he has left up this embarrassingly false post without so much as a half-hearted correction.

[NellieBly]

The question of the entry of judgment and finality pending appeal has been on my mind since the recent 'sentencing' hearing.

There has been such haste to pronounce the president-elect a 'felon' -- repeat as often as the little heart desires -- that whether this is true is as disregarded as it was before the announcement of no punishment, etc.

[ObviouslyNotSpam]

No one is questioning your ability to elevate belief over reality.

[tuphat]

Josh: Do you even read the opinions about which you write? What part of "remand" do you not understand?

"For either or both of these reasons, the People's motion to remand the case is granted. The Clerk shall remand the casefile to the New York Supreme Court, New York County." People v. Trump, 683 F. Supp. 3d 334 (S.D.N.Y. 2023)

[David Nieporent]

Do you even read the opinions about which you write?

That would kinda interfere with his ability to have quick hot takes.